DOBBS & DOBBS - [2020] FamCA 700

FAMILY COURT OF AUSTRALIA

DOBBS & DOBBS

[2020] FamCA 700

FAMILY LAW – PROPERTY – final property orders made in 2018 – where husband appealed the final property orders made to the Full Court of the Family Court of Australia – appeal dismissed by the Full Court – competing applications in a case by the parties for interpretation of final property orders and enforcement orders – where the parties disagree about what monies should be included in arriving at the net remaining balance from the sale of the property – where wife seeks the necessary orders to make superannuation splitting orders operative – machinery orders needed to give effect to the final property orders – binding orders needed to give effect to the final property orders.

FAMILY LAW – CONTRAVENTION – contravention applications filed by the husband and wife alleging breach of final Court orders – where some applications and/or counts of alleged contravening conduct were withdrawn and/or dismissed by the Court – where wife alleged breach by the husband resulting from the husband’s failure to transfer his interest in the former matrimonial home to the wife – wife alleges the husband breached final non-denigration order of the Court – the Court finds the husband contravened orders of the Court – husband alleged three counts of breach by the wife of final parenting orders – the Court finds the wife did not contravene final parenting orders – each of those counts is dismissed.

Family Law Act 1975 (Cth) ss 90XT, 106A

Dobbs & Dobbs [2018] FamCA 66
Dobbs & Dobbs [2019] FamCA 536

APPLICANT:

Mr Dobbs

RESPONDENT:

Ms Dobbs

FILE NUMBER:

MLC

8793

2015

DATE DELIVERED:

31 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

24 & 27 August 2020

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Hone Legal & Conveyancing

Orders made 24 August 2020

The husband have leave to withdraw his second contravention application filed on 2 April 2020.
The wife’s contravention application filed on 19 March 2020 is dismissed.
Both count 1 and count 2 of the wife’s contravention application filed on 22 January 2020 are dismissed.
The further hearing of counts 3, 4 and 5 of the wife’s contravention application filed on 22 January 2020 and the wife’s application in a case filed 19 March 2020 is adjourned to a date to be fixed.
The further hearing of counts 1, 3 and 4 of the husband’s first contravention application filed on 2 April 2020 is adjourned to a date to be fixed AND THE COURT NOTES the husband was granted leave to withdraw count 2 of his alleged contraventions on 2 July 2020.

Notation

A.Judgment is reserved in respect of both the Application in a Case filed by the husband on 18 June 2020 and the Application in a Case filed by the wife on 25 June 2020.

Orders made 27 August 2020

Count 4 of the husband’s first contravention application filed on 2 April 2020 is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DOBBS & DOBBS [2020] FamCA 700
Case: [2020] FamCA 700
Decision Date: 31 August 2020

CaseChat Overview and Summary

The parties, Mr and Mrs Dobbs, brought competing applications before the Family Court of Australia concerning the interpretation and enforcement of final property orders made in 2018, which had previously been upheld on appeal to the Full Court. The dispute centred on the calculation of the net balance remaining from the sale of a property, with the parties disagreeing on which monies should be included. The wife also sought machinery orders to give effect to superannuation splitting orders and other binding orders necessary to implement the final property settlement.

The Court was required to determine several legal issues. These included the proper interpretation of the final property orders regarding the net balance from the property sale, and whether machinery or binding orders were necessary to give effect to those existing orders. Additionally, the Court had to adjudicate on contravention applications filed by both parties. Specifically, the wife alleged the husband had contravened the final property orders by failing to transfer his interest in the former matrimonial home and had also breached a non-denigration order. The husband alleged three counts of contravention by the wife concerning final parenting orders.

In relation to the property orders, the Court found that certain monies should be included in the calculation of the net balance, thereby interpreting the 2018 orders in a manner that required further orders to give effect to the superannuation splitting and other aspects of the settlement. Regarding the contravention applications, the Court found that the husband had contravened the final property orders by failing to transfer his interest in the former matrimonial home and had also contravened the non-denigration order. Conversely, the Court dismissed all three counts of alleged contravention by the wife of the final parenting orders.

Orders